The Divisional Court recently held that a Superior Court Judge has inherent jurisdiction to order a party to be examined by a non-health practitioner

This issue arose in the context of two separate actions in which the plaintiffs sustained serious injuries. The defendants in Ziebenhaus vBahlieda ("Ziebenhaus") were successful on a motion requiring the plaintiff to undergo a vocational assessment by a vocational evaluator, and the defendants in Jack v.Cripps ("Jack") were successful on a motion requiring the plaintiff to undergo a functional abilities evaluation by a chiropractor. The plaintiffs in both actions appealed these orders to the Divisional Court. The Divisional Court upheld the order in Ziebenhaus, but set aside the order in Jack.

This decision addresses section 105 of the Courts of Justice Act ("CJA") and Rule 33 of the Rules of Civil Procedure which set out the statutory scheme whereby a Court may order a party to undergo a physical or mental examination by a "health practitioner" where the physical or mental condition of a party is in question. The CJA defines "health practitioner" as a person licensed to practise medicine or dentistry, a member of the College of Psychologists or a person certified or registered as a psychologist by another jurisdiction. It was not disputed that the two proposed evaluators in Ziebenhausand Jackwere not "health practitioners" under the CJA.

Ultimately the Divisional Court concluded that judges of the Superior Court of Ontario have the inherent jurisdiction to order a party to undergo a physical or mental examination by a person who is not a "health practitioner" as defined in section 105 of the CJA. Section 105 is permissive and does not expressly state that a Court is prevented from ordering a physical or mental examination in circumstances other than those in section 105. The Divisional Court recognized that there is a gap in section 105 in that it does not make provisions for the sorts of examinations which are routinely used in the care and treatment of injured persons and in litigation, but are not conducted by "health practitioners" as defined in the CJA. Health sciences have evolved to encompass a far wider range of assessments than those provided by a "health practitioner." These include vocational assessments, functional capacity evaluations and workplace assessments provided by non- medical professionals such as occupational therapists, rehabilitation therapists, vocational assessors, future care costs experts and other specialists.

In determining whether to exercise its inherent jurisdiction to order a party to be examined by a non-health practitioner, the Court must consider the extent to which such an order is required to satisfy the principles of trial fairness and justice. In this regard, the Divisional Court stated that the "principal and necessary basis for such an order would be demonstration that a defendant cannot adequately meet the plaintiff's case without such an examination." In addition, the Divisional Court expressly rejected the practice of ordering an examination solely on the basis of a principle of "matching". That is, a defendant would not be entitled to a particular type of examination simply to match an opinion delivered by a plaintiff.